TOPIC 8.12

[Topic  8.12.1  Obligation To Report Work—Generally]

Cheetham v. Bath Iron Works Corp., ___ BRBS ___ (BRB No. 04-0338)(Dec. 20, 2004).

            The Board found that the ALJ acted properly in finding that the employer’s failure to request earnings information on the specified form precluded application of Section 8(j) although the ALJ also found that the claimant intentionally and willfully misrepresented his earnings.  In this case the employer had used a State of Maine form, which a state workers compensation claimant is required to fill out every 90 days.  The Board compared the LS-200 form prescribed by the Director with the State of Maine form and found them dissimilar in material respects.  The LS-200 requires separate reporting of earnings from employment and self-employment; it requires specific information about each type of earnings, and defines earnings to include revenue received from self-employment even if the business or enterprise operated at a loss or if the profits were reinvested.  The Maine form is silent as to the definition of “pay or other benefit.”  More importantly, the Maine form states that the claimant’s benefits may be “discontinued,” whereas the longshore form states that benefits may be forfeited.”  Finally, the longshore form warns of criminal penalties for fraudulent representations concerning earnings, and the Maine form does not contain any similar provisions.  The Board found it significant that the Maine form did not warn the claimant that his longshore benefits were at risk for failure to comply with the reporting requirement, the result which the employer sought .

Topic  8.12.1  Obligation To Report Work--Generally

Briskie v. Weeks Marine, Inc., ___ BRBS ___ (BRB No. 03-0796)(August 25, 2004).

            The Board held that, pursuant to 20 C.F.R. § 702.285(a), in order for an employer to require the claimant to submit an earnings report pursuant to Section 8(j), the employer or the Special Fund must be paying compensation to the claimant, either voluntarily or pursuant to an award, at the time the request for information is made. If the employer or the special fund is not paying compensation, the forfeiture provision of Section 8(j) cannot be applied to a claimant who fails to respond timely or accurately to the information request. The Board went on to hold that by the explicit terms of the regulation at Section 702.285(a), the claimant was not a "disabled employee" who was legally obligated to comply with the employer's request or risk forfeiting his benefits under the LHWCA.

            In reaching its decision, the Board had noted that where the statute contains a "somewhat ambiguous phrase, ‘disabled employee,' the agency's interpretation of the statute through a regulation must be ‘given controlling weight unless [it is] arbitrary, capricious, or manifestly contrary to the statute.'" To this end, the Board noted that, "The legislative history of Section 8(j) explains that congress intended to limit the reporting obligation and the forfeiture penalty to employees who are receiving compensation concurrently with the request for earning information." Slip opin. at 7 citing H.R. Rep. No. 98-570(I) at 18 (1984) reprinted in 1984 U.S.C.C.A.N. § 2751. See also H. Conf. Rept. No. 1027, 98th Cong., 2d Sess. (1984), reprinted in 1984 U.S.C.C.N. § 2783.

            The Board also noted that where a claim is being adjudicated, an employer has the means to obtain wage information through the discovery process. 33 U.S.C. § 927(a); see Maine v. Bray-Hamilton Stevedore Co., 18 BRBS 129 (1986).

Topic  8.12.1  Obligation To Report Work--Generally

Floyd v. Penn Terminals, Inc., 37 BRBS 141 (2003).

            At issue here is the application of Section 8(j) forfeiture. The claimant has questioned the ALJ's authority to initiate consideration of forfeiture. The Board has previously held that an ALJ has the authority to adjudicate whether benefits should be suspended pursuant to Section 8(j). In the instant case the Board found that Section 8(j) itself provides no direction on the procedures for adjudicating forfeiture proceedings. The Board also noted that the legislative history is equally lacking any relevant information that might indicate whether Congress intended to make the district director the exclusive initial adjudicator of forfeitures.

            After examining the regulations, the Board noted that Section 702.286(b) provides that an employer may initiate forfeiture proceedings by filing a charge with the district director, who shall then convene an informal conference and issue a decision on the merits. Nevertheless, if either party disagrees with the district director's decision, the regulation authorizes an ALJ to consider "any issue" pertaining to the forfeiture. The Board explained that for this reason, despite the statutory reference to the deputy commissioner, the Board has previously held that an ALJ has the authority to adjudicate a forfeiture charge.

            In holding that forfeiture proceedings may, depending upon the specific facts of a case, be initiated before the ALJ, the Board used the following logic:

Section 702.286(b) makes the subpart C rules for [ALJ] hearings (20 C.F.R 702.331-702.351) applicable to forfeiture disputes. Section 702.336, in turn, authorizes an [ALJ] to consider "any" new issue at "any" time prior to the issuance of a compensation order. Thus, as the Director suggests, Sections 702.286 and 702.336 maybe construed harmoniously because section 702.286 does not qualify the authority conferred by Section 702.336. Consequently, the formal hearing procedures permit a party to raise the forfeiture issue for the first time at the hearing.

            Further, the Board rejected the claimant's contention that his right to procedural due process would be abridged unless the district director initially considers all forfeiture charges and noted that ALJ hearings include protective procedural safeguards.

            The Board declined to review the ALJ's certification of the facts of this case to the federal district court, pursuant to Section 27(b) regarding alleged misstatements on an LS-200 form and also regarding a pre-existing back condition. The Board cited A-Z Int'l v. Phillips [Phillips I], 179 F.3d 1187, 33 BRBS 59(CRT) (9th Cir. 1999).

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